When An Employee Won't Sign On The Dotted Line

(Published June 8, 2009)

 

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Every HR manager knows the importance of disciplinary documentation. Ideally, the information is accurate and descriptive, with all the i's dotted and t's crossed. But what happens if an employee refuses to sign their disciplinary memo? Your carefully prepared documentation still stands, regardless. The question is how to deal with the employee.

 

Make sure the employee understands what signing the document means. Explain that their signature simply acknowledges that they received and reviewed the disciplinary document; it does not indicate an admission of guilt or their agreement with the contents. Consider adding this explanation above the employee signature line on disciplinary forms.

 

Make sure the employee understands what not signing the document means. Explain that their refusal to sign does not in any way change your ability to enforce the disciplinary measure and their responsibility to abide by it.

 

In general, an employer has the right to terminate an employee for refusing to sign disciplinary documentation. Case in point: An employee refused to sign a performance improvement plan that identified "suggested solutions" for her three problem areas: attendance, attitude, and job performance. The employee declined because she believed she was performing her job satisfactorily and blamed any difficulties on a "cultural difference." The employer followed through on its warning that it would fire her if she did not sign.

 

The employee followed up with a lawsuit claiming retaliation under the Family and Medical Leave Act (FMLA), which a district court dismissed because the employee could not point to anything "that reasonably suggests that her termination was motivated by anything other than her refusal to accept the improvement plan."

 

She did not fare any better on appeal. The appeals court found that the improvement plan did not constitute an adverse action that would cause a reasonable employee to forgo exercising her rights under the FMLA. Court: The improvement plan offered the employee the opportunity to improve her performance and retain her job. A materially adverse action would be if she were forced to choose between resigning and taking a significantly lower-paying job. In contrast, she faced "the less-than-intimidating prospect of planning her days and minding her tone." (Cole v. State of Illinois, et al., 7th Cir., No. 08-1754, 2009)

 

Add a "refused to sign" line. Since disciplinary meetings ideally include the employee's manager, both you and the manager can witness the refusal and initial the "refused to sign" statement.

 

Tip: Get the employee's verbal agreement. They should be able to answer yes regarding whether the document has been discussed with them and whether they understand it. If there is any confusion (not disagreement), then review the applicable parts until they agree that they understand. If the employee still refuses to sign, you can indicate the employee's verbal acknowledgment of receipt and understanding, and their refusal to sign.

 

Give a copy to the employee. They may still later try to claim that they never received the document, but at least they won't have a valid point.

 

Allow the employee to include a rebuttal, if they ask. The rebuttal gives the employee a chance to be heard; employees who feel they have no voice in the workplace are more likely to want to be heard in court. And it serves as proof that the employee reviewed the document. Just be sure to reiterate that the employee's disagreement doesn't change the content or consequence of the warning.

 

Warning: Don't allow the employee to mark up the original document. By doing so, you'd make it easy for them to claim in court that you were in full agreement with all the changes they'd made. Have them write their rebuttal on a separate sheet.

 

If the rebuttal reveals a legitimate issue, investigate the matter and reevaluate the disciplinary decision if necessary.

 

Related Topic(s): Discipline & Performance Issues/Bad Attitudes & Complaints, Discipline & Performance Issues/Insubordination